Tag: Fundamental Rights

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On September, 13th President Jean-Claude Juncker addressed the annual speech of the State of the Union (here). Against the background of the White Paper on the Future of Europe and in solid dialogue with the European Parliament, President Juncker presented some new ideas as well as highlighted previous proposals. More importantly, the European Commission demonstrates that it is effectively holding the position of initiative with which the Treaties empower it – in close democratic discussion with the Parliament.

Here we intend to comment the first impressions about key aspects of some of the topics the Juncker Commission brought to life and debate.

1. After valuing the European institutions role on “helping the wind change” for growth, job creation and control of public deficits, he expressed the will to strengthen the European trade agenda by negotiating international agreements. It seems that after the cases of the Paris agreement (on environmental issues) and the uncertainty around TTIP, there are two messages underlying this point. The first is to make the EU the main business platform worldwide (Canada, Japan, Mexico, South America and the proposal to open negotiations with Australia and New Zealand). Reliable and stable, Europe wants to be the ideal partner and the first in line in global economy. With many interrogations amounting over the US, this also seems to be an external policy strategy (“we are not naïve free traders”, he said). Alongside investment, the idea is to make the industry stronger and more competitive as well as being the leader in fighting climate change. More and more signals of the projection of the leadership of the Union in the world.

2. As far as migration, external borders and the Schengen area are concerned, migration will remain a priority. So will the support to Italian authorities who are “saving Europe’s honour in the Mediterranean”. In parallel, the Commission wants to work on legal pathways to end illegal activities like trafficking at the same time it calls for solidarity in welcoming refugees. This is a novelty. After Germany’s policy of opening doors, now the EC looks like the new leading actor in this matter. Contrary to the position of his political family, which never clearly came out, President Juncker took on a stand closer to the approach of S&D. It will be interesting to follow the next parliamentary debates and what the EPP’s reaction will be, even though its following remarks were in a more agreeable way to these terms. Finally, suggesting that Romania, Bulgaria and soon Croatia should become members of the Schengen area is a political movement on a critical region where Russia has been growingly active. The idea seems to be to overpower its influence there – the direct reference of the 100th anniversary of Estonia, Latvia, Lithuania and Romania proves just that.

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In September 2015, and in the wake of the case-law set in Fransson, the European Court of Justice (ECJ) detailed in Tariccothe scope of the Member States’ obligations to combat VAT fraud (see comment here). The ECJ is now faced with the repercussions of said judgment as the Corte costituzionale [the Italian Constitutional Court (ICC)] questions the compatibility of the solution established therein with supreme principles of the Italian constitutional order.

As is well known, the Taricco case called into question the Italian regime on limitation periods for criminal offenses. The national provisions in question were such that, given the complexity and duration of criminal proceedings, defendants accused of VAT evasion constituting serious fraud affecting the EU’s financial interests were likely to enjoy de facto impunity as a result of the expiration of the limitation period. Having established that the Italian regime in question was not in conformity with EU law, the ECJ interpreted Article 325 TFEU as having “the effect, in accordance with the principle of the precedence of EU law, in their relationship with the domestic law of the Member States, of rendering automatically inapplicable, merely by their entering into force, any conflicting provision of national law”. Therefore, national courts were to “ensure that EU law is given full effect, if need be by disapplying those provisions (…), without having to request or await the prior repeal of those articles by way of legislation or any other constitutional procedure”. The ECJ significantly added that, if a national court decides to disapply the national provisions at issue, “it must also ensure that the fundamental rights of the persons concerned are respected” as penalties might be applied to them, which, in all likelihood, would not have been imposed under those national provisions. In this regard, the ECJ did not consider that such a disapplication of national law would infringe the rights of the accused as guaranteed by Article 49 CFREU on the principles of legality and proportionality of criminal offences and penalties.

The Taricco judgment caused some stir within the Italian legal community. A few days after the delivery of the judgment, the Corte d’appello di Milano (Court of Appeal of Milan), instead of applying the solution formulated therein in a case pending before it concerning serious fraud in relation to VAT, stayed the proceedings to raise a question of constitutionality before the ICC, which would be followed months later by the Corte suprema di cassazione (Court of Cassation). Both courts have doubts as to the compatibility of the case-law established in Taricco with supreme principles of the Italian constitutional order and with the requirement to respect inalienable human rights as laid down by the Italian Constitution, with particular reference to the principle of legality in criminal matters [Article 25(2) of the Italian Constitution]. Hearing such concerns, the ICC sought a preliminary reference from the ECJ (here and here) according to an expedited procedure, the application of which was deferred (here). Advocate-General Yves Bot recently rendered its Opinion (here).

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In the decision Digital Rights Ireland of 2014[i], the ECJ was called upon to assess the validity of the Directive 2006/24 (on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks) in the light of Articles 7 (Respect for private and family life) and 8 (Protection of personal data) of the Charter of Fundamental Rights of the European Union (CFREU) and considered that the obligation imposed by the Directive 2006/24 on providers of electronic communications services constituted an interference with the aforementioned fundamental rights. [ii]

The issue at hand is that the directive concerned all those who used electronic communications services in Europe – even those whose conduct were not in any way linked with criminal activities. Furthermore, while seeking to fight against serious crime, the Directive did not provide for any differentiation, limitation or exception to the retention of data of persons whose communications are subject to professional secrecy. In addition to a general absence of limits, the Directive 2006/24 did not lay down any objective criterion to limit the access of the competent national authorities to the data and its subsequent use. Furthermore, the Directive did not require that the data in question should be kept within the territory of the Union, and thus a supervision by an independent body was not fully guaranteed.

While it is true that the fight against serious crime is of prime importance in ensuring public safety and that its effectiveness may depend on the use of modern investigative techniques, such objective, be that as it may, cannot in itself justify a retention measure such as the one established by Directive 2006/24 as necessary for those purposes[iii]. By adopting Directive 2006/24, the European Union legislature had exceeded the limits imposed by the principle of proportionality in the light of Articles 7, 8 and 52(1) of the CFREU, and for that reason the ECJ ruled the invalidity of the directive, without reservations as to the temporal effects of its decision (ex tunc).

However, following the judgment in the Digital Rights Ireland case, the reaction of the Member States was not consensual, which led to an unlawful differentiation of treatment between European citizens. The decision of the ECJ raised the problem of the effects of that invalidity in relation to the national provisions transposing the directive. According to data released by the Portuguese Public Prosecutor’s Office, ten of the EU Member States have declared invalid the national laws that transposed the data retention directive, either by parliamentary decision or through their constitutional courts. In other Member States, including Portugal, this was not the case because the substantial requirements of the ECJ’s decision were deemed satisfied by the national legislation that transposed it. [iv]

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The differences in the Member States’ legislation regarding the protection of trade secrets against their unlawful acquisition, use or disclosure, the lack of consistency regarding the civil law remedies available and the differences regarding the treatment to give to a third party who has acquired the trade secret in good faith but subsequently learns that the acquisition derived from a previous unlawful acquisition by another party are some of the reasons that justified European action regarding the protection of undisclosed know-how and business information (trade secrets).

Such differences were, for many years, a reason for the fragmentation of the internal market and for the weakening of the overall deterrent effect of the relevant rules applicable. This legal framework lead to a decrease of innovation- related cross-border activity and, naturally, to a decrease of European Union’s intellectual production. In order to provide rules at Union level regarding the harmonization of the protection of know-how and trade secrets it was necessary to elaborate and publish Directive (EU) 2016/943.

by João Marques, Lawyer and member of the
Portuguese Data Protection National Commission

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The right to be remembered – Directive 95/46/CE begins its twilight and makes way for the new General Data Protection Regulation (GDPR)

It was on May the 4th that the EU paradigm regarding personal data protection started to write its chapter in the common book of legal unification. As the Regulation (EU) 2016/679 [together with Directive (EU) 2016/680] finally got published in the Official Journal of the EU, a new era is jumpstarted. The first “victim” of the new paradigm is the old Directive 95/46/CE, which for the past 20 years has served European citizens honourably.

Although it faced a challenging task, Directive 95/46/EC was generally capable of protecting EU citizens against the predatory instincts of our world regarding their personal data. A suitable testament in this regard is the fact that the principles enshrined in Chapter 2 of the Directive have been, for the most part, kept almost unchanged. Lawful processing, purpose specification and limitation, data quality, fair processing and accountability remain as the bedrock of data protection under the new legal framework.

As ever, the CJEU case-law has been of paramount importance in the consolidation of a European perspective in which the citizen’s fundamental rights are at the forefront of the Union’s responsibilities, with the recent case C-362/14 (Schrems V. Data Protection Commissioner and Digital Rights Ireland Ltd) being yet another example of the approach for which the court is well known.

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The EU-Turkey deal and the migration crisis – or how far refugees are from an equal and dignified treatment

The ever-increasing flow of people around the globe is an unarguable consequence of the globalization process, which we have undergone, mainly as of the twentieth century. However, the world seems to have been drawing its attention to the movement of people around the globe not in the very last century, but mostly in the last two years. The nowadays called “migration crisis” has been showing the international society how difficult it is to struggle against some dire situations some people experience in their home countries.

Mainly because of its strong economy and its tradition of human rights, the European Union has been figuring as the main destination of refugees: more than a million migrants and refugees crossed into Europe in 2015 – and there are no signs these numbers are reducing in 2016.

In March 2016, however, the European Union seemed to have taken a step back on refugees’ Human Rights protection. The EU-Turkey Joint Action Plan was put into practice on March 20th for the sake of managing the refugee crisis. In a nutshell, some of the main aspects of this deal (called by the EU as “principles”) consider[i]:

1) The return of all new irregular migrants and asylum seekers crossing from Turkey into the Greek islands with the costs covered by the European Union;

2) The resettlement of Syrian nationals: for every irregular Syrian returned from the Greek islands and readmitted by Turkey, another regular Syrian will be resettled to the EU Member States directly from Turkey. In order to achieve this goal, EU Member States should make a sufficient number of resettlement places available.

Some principles of this Joint Action Plan draw Turkey and the EU together. In compensation for the return and resettlement scheme – and apart from the obviously needed disbursement of funds under the Facility for Refugees in Turkey, which will be sped up – the Commission and Member States are working on advancing the accession negotiations with Turkey. Moreover, by the end of April 2016, the European Commission should make a legislative proposal to lift the visa requirements for Turkish citizens who want to enter the EU territory.

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The Official Blog of UNIO joins the sentiment expressed worldwide towards Belgium after the heinous attacks today in Brussels, the European Union administrative de facto capital. Our thoughts go out to the victims, their families and every single person – EU citizens or not – who suffers from intolerance and violence. Integration and assimilation are even more needed at these times to affirm pluralism and intercultural tolerance. As our emotions meet the High Representative of the Union for Foreign Affairs and Security Policy’s ones, we must never forget nor abandon the values of our fundamental rights.

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Due to the widely-acknowledged vulnerabilities that characterise the current European neighbourhood policies and external relations, the European Union has sought to encourage a renewed political dialogue. To a large extent, these new efforts are grounded on the need to face the current humanitarian and social crisis involving migrants and refugees and encountering two leading actors: Germany and Turkey.

The underlying issue is border management in order to polish and consolidate a more realistic answer to different needs. On one hand, attention must be drawn to the internal organisation of countries endowed with the geo-political profile, as the one that can be pointed out to Turkey, and their inabilities to handle the massive incoming of refugees in a solitary confinement. On the other hand, one is confronted with another issue concerning identities in transit. Giving the uncountable number of identities crossing geographical, social and cultural borders, is there any moral obligation on the part of the States to open their borders? At the core of what can be regarded as the management of political borders we encounter two chess pieces. The first thrives on cooperation and stability, sustaining that borders do have a peculiar moral meaning with its own sense of justice at the “local” level, regardless of shared views with political communities on distributive justice. The second one insists on a more plural argument placing the moral significance both in geopolitics and on people, which would be shyly seen in the possible accession of Turkey to the European Union – a topic which was recently re-placed on the table.

In short, there is one map with different languages: the tonic placed on the enlargement of the European Union and the emphasis on shared global governance.

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‘The inclusion of the other and the fall of the Empire’

The word of the year 2015 was ‘refugee’. It is quite amazing how seven letters can actually encompass the sea of problems the European Union is facing, which will almost certainly be prevalent throughout 2016.

Aylan Kurdi died at our doorstep in the beginning of September. Before him, thousands of other migrants had already drowned in the Mediterranean, but it took the powerful image of a dead child lying on the sand for the Europeans to address the problem. Hundreds of volunteers mobilized to help their fellow humans, who ran away from war and misery. But although individuals acted, according to their possibilities, the EU institutions seem helpless, almost paralyzed. The Union struggled to reach an agreement about the reception and support to the refugees; some Member states refused the proposed quotas’ system. Hungary’s parliament voted to deploy troops to repel refugees from its border, deepening divisions with the rest of the EU. The common mechanisms negotiated have proven almost useless until now. Very few refugees have been resettled. 2016 began with yet another picture of a dead child, while trying to reach safety and peace, and with the alert from the former United Nations High Commissioner for Refugees, António Guterres: the EU has failed, and only traffickers are managing the migrants’ influx.

There is a growing and worrying incapacity, within the Union, to “include the other”, to use a classical expression of J. Habermas. In fact, the refugees’ crisis is only the worst, more serious symptom, of a larger problem: the loss of the European social project, the abandonment of an idea of Europe as an inclusive and plural community of equals. With this phenomenon comes the loss of hope in the Union’s institutions, trapped between the unwillingness of some and the incapacity of others to find reasonable political solutions to people’s problems.

Under this scenario, citizens are turning to other, quite unsettling, options. Extreme right-wing parties are gaining followers and votes all over Europe (France, Hungary and Poland are good examples of this), without a decisive institutional reaction from the EU, even in common matters, and in a striking contrast with the way the Greek crisis was handled.

Nationalism and separatism are rising. No later than 2017, the UK will hold an in-out referendum about the Union. An “out” vote will have unpredictable consequences and may be the end of the European project as we knew it: the “fall of the Empire”. Therefore, the biggest challenge for the time to come is to reinvent the EU. To build European politics based on hope and on values such as solidarity, diversity and rule of law, rather than fear and exclusion. Only Europe can save itself. Will it succeed?

[We also invite you to take a look at the Portuguese elections aftermath as commented by Sérgio Maia Tavares Marques, here.]

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Keywords: Citizenship of the Union; nationality of one Member State acquired by birth; nationality of another Member State acquired by naturalisation; loss of original nationality by reason of that naturalisation; loss with retroactive effect of nationality acquired by naturalisation on account of deception practised in that acquisition; statelessness leading to loss of the status of citizen of the Union.

Summary: The European Court of Justice (ECJ) was referred for a preliminary ruling on proceedings that concerned a decision withdrawing the nationality, granted by way of naturalisation that, in turn, would result in the loss of the status of citizen of the Union.

Rottmann, an Austrian citizen, had acquired the German nationality through a naturalisation process from which, in accordance with the Austrian legislation, he automatically would lose his nationality of origin. The German authorities later found out that Rottmann had omitted the fact of being previously involved in serious criminal proceedings, and of being the main target of an arrest warrant. Due to this predicament, the German authorities decided to withdrew the German naturalisation with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. Since these proceedings would result in the loss of the German nationality and, therefore, the citizen of the Union status as well, leaving him stateless, Rottmann challenged the decision from the German authorities.

The analysis made by the ECJ started to consider that, according to international law, it is within the competence of Member States to establish the conditions in which there is acquisition or loss of nationality. However, it also acknowledged that the exercise of this power can be subjected to further judicial control, when it affects rights and guarantees covered by EU law.

In fact, it is in the legitimate interest of the Member States to protect and foment the solidarity and good-faith relations among the State and their nationals, guaranteeing their loyalty, relation in which the concession of nationality is based. Accordingly, the ECJ states that EU law does not oppose to a decision of a Member State decision withdrawing the nationality, granted by way of naturalisation, when it was obtained by fraud, and as long as that decision goes through the proportionality test in regard to its consequences and effects in terms of EU law.

It is also relevant to highlight the opinion of the Advocate General which defended that there is a relation of reciprocity between the acquisition of nationality and the exercise of the rights that arise from the Treaty. Accordingly, the imposition of loyalty and good-faith in the process of acquisition of nationality, demanded by Germany, does not violate any EU law provision. Moreover, international law does not prohibit the loss of nationality even when the result is the statelessness.

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